DPP v Wan [2018] VSC 195

2 The incident, which was the subject of the charge, occurred in La Trobe Place, Melbourne shortly before 10.30 pm on Friday 15 April 2016. During the days leading up to that incident, a fight had been organised between the deceased man, Longxiang Hu, and another young man, Wuyang Ji, in order to settle their differences over a girl, with whom they were both enamoured. Shortly after the fight commenced, you intervened, and in the concluding stages of the altercation, you threw Longxiang Hu to the ground, and stomped on his head five times. As a consequence, Longxiang Hu sustained critical head injuries. After some delay, he was conveyed to hospital, but his condition by then was deemed to be inoperable. Longxiang Hu was maintained on life support until his parents arrived from China. After the support was removed, he died on 23 April.

3 The prosecution did not allege that, by stomping on Longxiang Hu's head, you had intended to kill him. Rather, it alleged that you intended to inflict really serious injury to him. By its verdict, the jury was not satisfied that you had that intention when you inflicted the blows that caused his death. You pleaded guilty to, and were convicted, of manslaughter, on the basis that your actions, in unlawfully assaulting Longxiang Hu, by stomping on his head, were dangerous, in the sense that a reasonable person, in your position, would have appreciated that you were exposing Longxiang Hu to an appreciable risk of serious injury.

4 It is my duty to sentence you in accordance with the verdicts of the jury. In order to do so, it is necessary to set out the background to, and circumstances of, the incident in some more detail.

5 At the time of the incident, you were then 23 years of age. You were a student at the Royal Melbourne Institute of Technology, and you were residing in an apartment in North Melbourne. Longxiang Hu, who was born in October 1996, was 19 years of age. He had come to Australia in 2014 in order to continue his secondary school studies at Yarra Valley Grammar School. At the time of his death, he was undertaking his studies for the Victorian Certificate of Education at that school.

6 Approximately one month before the incident, Longxiang Hu had commenced a boyfriend/girlfriend relationship with Yongying Jiang, who was then a Year 11 student at Yarra Valley Grammar School. At that time, Yongying Jiang had been friendly with Wuyang Ji, and he continued to hold warm feelings towards her. Accordingly, he became upset when Longxiang Hu commenced his relationship with her. You were a close friend of Wuyang Ji, who was five years younger than you. A witness at the trial said that you acted like an older brother to Wuyang Ji, and that you were protective of him.

7 During the weeks leading to 15 April, there were some communications that were directed by you, and by Wuyang Ji, to Longxiang Hu, in which you and Wuyang Ji expressed a degree of hostility towards Longxiang Hu. Wuyang Ji and you pressed Longxiang Hu to meet with you both, in order to sort out your differences with him. On at least one occasion, Longxiang Hu had declined to meet with Wuyang Ji and you for that purpose.

8 However, ultimately it was agreed between Wuyang Ji and Longxiang Hu that they would meet on the evening of 15 April. The meeting was organised to take place in La Trobe Place, which is an alleyway that runs north/south between Bourke Street and Little Bourke Street, a short distance east of Swanston Street, in the central business district. The purpose of the arrangement was so that Longxiang Hu and Wuyang Ji would fight each other in order to resolve their differences over Yongying Jiang. Before the fight took place, a number of friends of both parties were invited to attend, and a large number of them were present as spectators to the incident. The evidence demonstrates that at that stage those who were involved in organising the fight, including yourself, were concerned that the fight would be between Wuyang Ji and Longxiang Hu, and that no-one else would be involved in it.

9 A substantial part of the fight, including the critical concluding stages of it, were captured on CCTV footage. However, the events, which took place immediately before the last moments of the fight, occurred in an alcove that is located to the west of the laneway, and that part of the conflict was not recorded. The following is a brief description of what is depicted on the CCTV footage, as supplemented also by the observations of witnesses who gave evidence in your trial. It is to be noted that, according to the CCTV footage, the fight commenced at 10:27 pm, and it concluded less than two minutes later.

10 At the commencement of the altercation, Wuyang Ji and Longxiang Hu commenced to fight each other. After a few short seconds, you also became involved in it, and you threw some punches in the direction of Longxiang Hu. You then withdrew from the altercation, and Wuyang Ji and Longxiang Hu continued to exchange blows for a short time. Wuyang Ji then walked back towards the crowd, and Longxiang Hu walked towards another part of the crowd, as if their fight had concluded. However, and, in response to that, you intervened again. You threw some punches at Longxiang Hu, and directed Wuyang Ji to continue to fight Longxiang Hu.

11 As a result, Longxiang Hu and Wuyang Ji then resumed their fight, and they threw punches at each other. In the course of that part of the fight, Wuyang Ji injured, and apparently dislocated, his shoulder, and he withdrew from the fray. It was then that you became actively involved in the altercation. Almost immediately after you did so, the incident moved into the alcove, to which I have referred, and it was not recorded on the CCTV footage. Another person, Hanjie Liu, who was aligned with Wuyang Ji, also joined in the fight against Longxiang Hu, but you directed him to desist, telling Hanjie Liu that he had no reason to be involved in it.

12 After about 15 seconds, the fight came out of the alcove, and it was again captured on CCTV footage. As it did so, you are depicted throwing Longxiang Hu forcefully to the ground, and immediately stomping on the back of his head while his forehead was facing the ground. Hanjie Liu then kicked Longxiang Hu in the stomach, following which you inflicted a second stomp to the back of his head. Those first two blows by you caused Longxiang Hu to lie on the ground with the right side of his face against the surface of the laneway. You then, in the next two seconds, forcefully stomped three times on the left side of his face. The last two of those blows were delivered by you while you had both hands on the wall of the building that was adjacent to the alleyway. In inflicting each of those two stomps, you raised your knee above hip height.

13 After inflicting those blows, you walked away for a short distance. You then returned, and attempted to kick Longxiang Hu again, but it is not clear whether you made contact with him. You again walked away from Longxiang Hu, who was lying prone on the ground.

14 A number of the onlookers assisted Longxiang Hu to sit on a step to a building that adjoined the laneway. At that stage, he was clearly unwell and distressed. You remained in the laneway during the next hour or so, although you did leave it at some stages and subsequently return. While you were there, you approached Longxiang Hu on a number of occasions. On some of those occasions, you apologised to him, and on one occasion you said to him, 'I bashed you too hard which I shouldn't have'. You demonstrated some concern for Longxiang Hu's condition, and you told him and his friends that he should go to hospital. You said that you would pay for any medical expenses incurred by him.

15 However, Longxiang Hu did not wish to go to hospital, although his condition was seriously deteriorating. At about midnight, some of his friends took him to a hotel which was nearby. By the time he arrived at the hotel, he could not walk without assistance. He was placed on a bed in a room in the hotel. During the ensuing hours, his condition deteriorated very badly. You attended at the hotel room at about 5:00 am. Over the next two hours, you urged that Longxiang Hu be taken to the hospital without delay for treatment. However, another person, who was there, refused to permit Longxiang Hu to be taken to hospital. You had an argument with that person, and eventually, at about 7:00 am, you were able to persuade those who were in attendance to take Longxiang Hu to hospital.

16 On arrival at the Royal Melbourne Hospital, Longxiang Hu's condition was parlous. The trauma registrar, who attended him, noted that he was unconscious, and that he was suffering from significant intracranial injury. A CT scan revealed that he had a significant injury to his head, including a fracture to the skull, and a large extradural haematoma. Due to the delay between the time the injury was inflicted and Longxiang Hu's attendance at hospital, the increasing pressure on his brain had been such as to result in brain death. Longxiang Hu was placed on life support and he was maintained in the intensive care unit until his parents arrived from China. On 23 April, his life support was turned off, and he passed away.

17 Professor Stephen Cordner, a forensic pathologist, conducted an autopsy on Longxiang Hu on the next day, 24 April. On external examination, he was found to have extensive areas of bruising to the forehead, and to each side of his head. He had a large and extensive fracture to the right side of the skull, and a substantial extradural haematoma. Unsurprisingly, Professor Cordner concluded that the injuries, which resulted in Longxiang Hu's death, had resulted from the kicks or stomps to the head that were depicted in the CCTV video. He considered that it was more probable that one or more of the last three stomps, which were inflicted to the left side of Longxiang Hu's head, caused the fracture to the right side of the skull and the extradural haematoma.

18 Based on those circumstances, it is necessary for me to make some findings concerning the gravity of your offending. In making those findings, I am mindful that I must be satisfied beyond reasonable doubt of any aggravating circumstances relied on by the prosecution. Equally, in order to be able to take into account any mitigating circumstance in your favour, I am required to be satisfied of the existence of that circumstance on the balance of probabilities.

19 At your trial, it was not suggested by the prosecution that the actions that you performed, that resulted in the death of Longxiang Hu, were premeditated. There was no evidence that before the fight occurred, or in its early stages, you had any intention to inflict serious injury on Longxiang Hu. Indeed, as I have mentioned, there was evidence that, in the lead up to the altercation, you had expressed some concern that the fight between Wuyang Ji and Longxiang Hu be conducted in a fair manner, that it be a one on one fight, and that it not get out of hand.

20 On the other hand, you did become involved in the fight at a very early stage. It was clear, from the outset, that you were concerned to ensure that the fight between Wuyang Ji and Longxiang Hu take place. For that purpose, you initially threw some punches at Longxiang Hu, in order to, as it were, get the fight underway. When, after a short confrontation, Wuyang Ji and Longxiang Hu appeared to part company, you intervened, directed them to resume their fight, and instigated further violence between them by throwing some punches at Longxiang Hu.

21 You did not become seriously involved in the altercation, until Wuyang Ji injured his shoulder and withdrew from the fight. There was some evidence that, during that phase of the altercation, and in the alcove, you threw some punches at Longxiang Hu. Otherwise, there was no evidence as to what occurred in the alcove, or what, if anything, preceded the very serious acts of violence by which you forcefully threw Longxiang Hu to the ground and repeatedly stomped on his head. There is no suggestion that there was any conduct, by Longxiang Hu toward you, which provoked or precipitated what you did in those fatal seconds. Your actions, in throwing Longxiang Hu to the ground, and stomping on him, were totally unwarranted and involved a high degree of wanton violence.

22 In particular, your conduct in stomping on Longxiang Hu's head five times was vicious and cowardly. Longxiang Hu was entirely defenceless, vulnerable, and at your mercy. The stomps were forcefully directed at his head while he was lying on the hard surface of the lane. Each of them were forceful blows, and, in particular, the last three were delivered by you with a substantial amount of force. As mentioned, in order to inflict the last two blows, you placed both of your hands on the wall, so as to steady yourself and give you greater leverage. The stomps took place in a period of less than four seconds of savage and sickening violence by you. Not content with having assaulted Longxiang Hu in that manner, a few seconds later you returned and tried to kick him again.

23 On your plea, it was contended by the prosecution that, as an aggravating circumstance, you inflicted that violence on Longxiang Hu while you were intoxicated. As I indicated in the course of your plea, I am not satisfied, beyond reasonable doubt, that you were intoxicated, or adversely affected by the consumption of alcohol, at the time that you inflicted those blows. The prosecution has relied, for that proposition, on the report of Ms Matthews the psychologist who recently examined you, and who stated that you told her you had consumed a substantial amount of cognac on the evening in question. However, none of the witnesses, who gave evidence at the trial, stated that, in the lead up to the incident, you had been drinking alcohol to excess. Further, none of the witnesses described you as being intoxicated, or in any way affected by the consumption of alcohol. There was nothing about your conduct, as depicted in the CCTV footage, that indicated that you were so affected. Based on those matters, I am not able to be satisfied, beyond reasonable doubt, that your conduct, on that evening, was affected by the consumption by you of alcohol.

24 The offence of manslaughter, of which you have been convicted, is a most serious offence, for which the maximum sentence is 20 years' imprisonment. There were no mitigating circumstances attaching to your conduct. Your attack on Longxiang Hu, while he was prone on the ground, was accompanied by a serious degree of violence. It was virtually inevitable that the blows, that you inflicted to his head, would result in serious injury to him, so that your conduct could fairly be characterised as being particularly dangerous. For those reasons, I agree with the submission made on behalf of the prosecution that this case falls within the higher end of the range of offences of manslaughter.

25 By your criminal actions, you have taken the life of a fellow human being. At the time of his death, Longxiang was a young man with his life in front of him. He was described by his mother, in her victim impact statement, as an outstanding person who had 'a heart of gold', who was intelligent, and who liked to play sport. He had come to this country in order to further his education, with a view to going to university. He clearly had a promising future before him when you took his life from him.

26 I have read, and re-read, the heart-rending victim impact statement of his mother, Liping Yuan, which was also read in Court in the course of sentencing submissions. By your crime, you have taken from Longxiang Hu's mother and father their much beloved and cherished only child. Your actions have inflicted indescribable pain and anguish on them. I have no doubt that their grief and distress over his tragic loss will remain with them throughout their lives. The victim impact statement is relevant, not because it is my task to decide the case according to emotional considerations such as sympathy or retribution, but in order to properly appreciate and acknowledge the impact and enormity of the crime that you have committed.

27 As I stated, there were no mitigating factors attaching to your offending. However, I am satisfied that there were some mitigating factors arising from your conduct after the incident.

28 As I have mentioned, you remained at the scene after you had assaulted Longxiang Hu, and you expressed real concern as to his wellbeing. You were particularly concerned about him when you visited him in the hotel room in the early hours of 16 April, and you insisted that he be taken to hospital. It is to your credit that you conducted yourself in that way. As discussed in the course of your plea, I am not persuaded, on the balance of probabilities, that that conduct evidenced any remorse by you at that time as to what you had done. Rather, it is equally likely that your conduct was driven by feelings of concern as to the consequences to you arising out of the severe injuries that you had inflicted on Longxiang Hu. Nevertheless, and while your conduct fell short of evidencing contrition on your behalf, I am satisfied that it is a mitigating factor that you did act in the manner in which you did, by demonstrating concern for Longxiang Hu and by taking some responsibility for what you had done.

29 Further, in early June 2017, and shortly before the committal proceeding, you offered to plead guilty to manslaughter. Your legal practitioners renewed that offer on your behalf twice before the trial, and it remained open until trial. As I have stated, on being arraigned before the jury panel, you pleaded guilty to manslaughter. I accept that your plea was an early plea, and it was accompanied by a willingness to facilitate the course of justice.

30 I am also satisfied, on the materials tendered on your plea, that, by the time that you first offered to plead guilty to manslaughter, you felt genuine remorse for taking the life of Longxiang Hu. You have expressed that remorse to your sister, to your girlfriend, and to your cousin, who have spoken to you while you have been in custody. More recently, you have expressed your regret and sorrow to Ms Pamela Matthews, the forensic psychologist who examined you in Barwon Prison, and she was of the view that your presentation was consistent with deep and genuine remorse for your behaviour. That evidence was supported by my own observations of you during the trial, and, in particular, of how you reacted, with evident shame and distress, when the forensic pathologist, Professor Cordner, described the severe injuries that you inflicted on Longxiang Hu.

31 There are also a number of mitigating factors arising from your personal circumstances, to which I now turn.

32 You were born in March 1993 in Lanzhou. You have one sister who is 10 years older than you. Both of your parents were in regular employment. Between the ages of 5 and 11 years, you were raised in the home of your paternal grandparents in Dingxi City. You then returned to live with your parents in Lanzhou.

33 From an early age, you demonstrated that you were a well above average student at school. After successfully completing entry selection examinations, you gained admission into the Chinese Academy of Sciences at Lanzhou Campus, which you attended between the ages of 12 and 14 years. During that time, you were awarded a number of certificates for distinguished academic performance. Subsequently, you were able to gain entry, in Year 9, to Lanzhou Secondary College, where you continued to perform well academically. In Year 11, in 2009, you were placed on the student honour roll for high overall achievement at the school. You successfully completed Year 12 in 2010. Your ENTER score was in the higher band, so that you were able to gain entrance to university.

34 In 2011, you commenced tertiary studies at Tianjin University of Commerce. The university provided a joint education program that enabled students to enrol in selected degrees from universities in foreign partner countries, including Australia. Accordingly, you commenced a double degree in finance and human resource management, one of which was conducted through Charles Sturt University. You successfully completed both degrees in 2015, gaining a Bachelor of Management from Tianjin University, and also a Bachelor of Business Management from Charles Sturt University.

35 During your years at university, you distinguished yourself in a number of aspects. For two years, between 2011 and 2013, you were captain of your year, and you were awarded certificates of honour for being an 'excellent class captain'. Your university teacher, Huihong Liu, has provided a reference, describing you as an outgoing, passionate and active student, who tried to do his best, helped others, and demonstrated high moral standards.

36 In the meantime, during your university holidays in 2013, you completed a work experience placement as the assistant to the general manager of a construction company. Bin Fang, who was in charge of your placement, has provided a reference, in which he described you as a person who has high overall qualities, and who carried out your work with the construction company with great care and a sense of responsibility.

37 Having completed your university studies in China, you successfully gained entry to the Royal Melbourne Institute of Technology in order to undertake a Master's of Financial Management degree. While waiting for approval of your visa, you commenced another trainee position at a local company. However, you were required to terminate that employment after a short time, because you gained a visa into Australia.

38 You arrived in Australia in November 2015, and commenced your studies in 2016. After settling in Melbourne, you became part of the Chinese expatriate community. It was in that context that you met and became friendly with Wuyang Ji.

39 It is clear, from what I have said, that, before the incident that has given rise to your conviction of manslaughter, you were a person of good character. You have no previous convictions. You come from a good family who are devoted to you, and who have been devastated by what you have done. In your young life, you have demonstrated yourself to be enterprising, diligent and highly motivated. The character references, that were tendered on your behalf, describe you as being particularly generous to your friends and to people who have fallen into unfortunate circumstances. You are exceptionally loyal to your friends, and you have a real concern for other people. In addition, as I have already stated, you have expressed genuine remorse, for what you have done, to your sister, to your cousin (to whom you are close) and to your girlfriend. Ms Matthews has formed the view that the regret, that you expressed to her, was genuine.

40 As a consequence of your conviction for manslaughter, you will be deported on the completion of your sentence. The materials tendered on your plea demonstrate that you had intended, when you finished your studies at RMIT, to return to China and to marry your girlfriend there. Thus, the deportation of you may not be as punitive to you as it is in the case of other persons who are convicted and deported. Nevertheless, I take into account, on your sentence, that your deportation will deprive you of the opportunity you would otherwise have had to remain in Australia, if you had changed your mind as to your plans when you completed your Master's degree at RMIT. In addition, I also take into account that China is rapidly developing and evolving in its social structure, so that when you return there after completing your term of imprisonment, it will be a very different place than that which you left. In that way, your return to China will be more difficult for you than it would otherwise have been.

41 To your credit, you have completed a number of programs during the last two years in which you have been in custody. In particular, you have gained certificates in construction, cleaning operations, and general education for adults. You have also participated in, and completed, the Managing Sleep Program and the Coping with Change Program. Those matters, together with your previous good character, are a sound basis for concluding that your prospects for rehabilitation will be good.

42 I also accept that your time in prison has been quite difficult. After your arrest, you were detained in the Metropolitan Remand Centre for 16 months. You were then transferred to Barwon Prison, where prisoners are locked down in their cells between 4.00 pm and 8.00 am each day. Initially, there were two other persons at that prison who spoke Mandarin, with whom you could converse. However, one of them has been recently transferred from the prison. Although you have made progress in learning the English language, nevertheless your facility with English is quite limited. You have been visited by family and friends, but the capacity of your parents to continue to come to Australia to visit you, during your term of imprisonment, will be limited, both by reason of their finances, and also due to matters relating to your father's health. A number of your friends have also visited you, but your circle of friends in Australia is diminishing as they complete their studies here and return to China. In that way, your term of imprisonment will be more onerous for you, because it is likely that you will be more isolated than would be the case for a person who is fluent in the English language.

43 At the time of the offending, you were a young person. Ordinarily, the Courts take into account the youth of an offender as a mitigating circumstance, because the law, and society, place a high value on the rehabilitation of young offenders. However, it is recognised that in cases, such as this case, involving an offence of violence, of the kind which is often committed by young offenders, the weight to be given to the offender's youth is reduced, and, on occasion, must to some extent give way to other sentencing principles, that include general deterrence and protection of the community.

44 In determining your sentence, I am required to take into account current sentencing practices. For any criminal offence, the range of factors, relating to the offending itself, and to the circumstances of the offender, vary significantly, so that it is never a simple task to identify the appropriate range of sentence. That is particularly so in cases involving the offence of manslaughter, which, experience teaches us, can occur in an infinite variety of circumstances. Nevertheless, it is important to have regard to the appropriate range of sentence, taking into account the circumstances of the offending in this case, and your personal circumstances. For that purpose, I have been assisted by the summaries of sentences that have been provided to me, and the helpful chart of sentences prepared by your legal practitioners. None of the cases, referred to in those materials, are substantially comparable with or similar to the present case. However, a review of them, as a whole, has given me some assistance in identifying the appropriate sentencing range for this case.

45 In determining your sentence, it is necessary that the sentence, which I impose, be such as to adequately express the condemnation by this Court, and by the community, of the serious degree of violence by which you took the life of Longxiang Hu. It is also important that the sentence be of sufficient severity so as to provide a clear lesson to others, and, in particular, to young persons, who might be minded to engage in violence of the kind that you perpetrated in this case. It is important that such persons understand that, if they choose to engage in gratuitous acts of serious violence, such as those engaged in by you, they can expect to be deprived of their liberty to live in society for a substantial period of time. It is also important that the sentence be sufficient in order to ensure that you personally are deterred from any further such wrongdoing. However, in that respect, as I have already stated, I am satisfied that the role of specific deterrence in this case is of lesser significance, in light of your previous good character, your genuine remorse, and the steps that you have taken towards your rehabilitation while you have been in custody.

46 In summary, as I have already stated, the offending by you in this case was serious, and it comes within the higher end of the range of offences of manslaughter. Your conduct was cowardly, and involved wanton and significant violence, in a public place, with no justification at all. On the other hand, I have accepted that there are a number of relevant mitigating circumstances, which I take into account in your favour. They include your plea of guilty, previous good character, your genuine remorse, the concern that you demonstrated for Longxiang Hu after you had injured him, the steps that you have taken towards your rehabilitation, your good prospects of rehabilitation, and the fact that your term of imprisonment will be somewhat more onerous for you.

47 Taking those matters into account, I sentence you as follows. I sentence you to 11 years' imprisonment. I fix a minimum non-parole period of 7 years and 6 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 735 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

48 As I already stated, I have taken into account, in your favour, the fact that you have pleaded guilty. For the purposes of s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 13 years' imprisonment with a non-parole period of 9 years and 6 months.